Thursday, June 4, 2009

On Bradley Rees' Selective Reading of the Constitution (Guest Post)

(Roland the HTG, a guest contributor here before, offers his thoughts on a new post by Bradley Rees)

Republican candidate/blogger/Fair Tax aficionado Bradley Rees posted recently on his belief that 5th District Congressman Tom Perriello is “breaking his oath," assumedly, though not explicitly stated, Perriello's oath to uphold the Constitution. Basically, according to Rees, Perriello broke his oath to his constituents, and they, mad as hell, should call Perriello. Included in his post is an email from Bill Hay, head honcho of the Charlottesville [tea partiers], which in turn quoted H.R. 450, legislation that would require “a concise and definite statement of the constitutional authority relied upon for the enactment of each portion” of every Act of Congress from now 'til Doomsday. Hay’s email then lists the enumerated powers of Congress that appear in Article I.

With a few glaring exceptions. While Hay/Rees list out the provisions for federal courts and post offices, they shockingly choose to forget the first and last clauses of Article I, Section 8:

“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States;…

…[and] to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

Selective constitutional memory is a dangerous thing. Rees brags on his blog of not being a lawyer; in fact it’s one of the four planks of his campaign platform. While his point about lawyers being overrepresented in the Congress, compared to their proportion of the general population, is well taken, it seems to me an absurd proposition that the makers of laws should not have some training in legal thought, legal practice, and most importantly legal writing. It’s easy to vilify the lawyers, but it isn’t intellectually honest to write them off completely.

The fact that the framers included the Necessary and Proper clause, giving the Congress the power to do what had to be done in order to “provide for the general welfare,” shows in the Constitution itself their understanding that a static document would not support a republic that was expanding its horizons, in geography, technology, and demography. But outside the Constitution, far more evidence exists of their belief in a living document. Take, for instance, my main man Thomas Jefferson (Wahoowa, Drew if you delete this part I will hurt you) [Go Hokies!]:

“A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held and may change their laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and unalienable rights of man.” (1824 letter to Jon Cartwright)
Ol’ TeeJ and his compadres never meant for the Constitution to last much further than their own generation. They wrote in the specific problems of the day that most urgently needed to be handled by the new Congress, but put in the escape hatch for when those needs had been taken care of.

(Brief aside—There are a lot of so-called strict constructionists who seem very willing to chuck out the Constitution when it gets in the way of their immigration policies. The issue of “anchor babies,” children born in the United States but to illegal alien parents, is not an issue that can be fixed with an Act of Congress. First sentence of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” You want to erase their citizenship, amend the Constitution. Good luck.)

I’m interested to see how Rees’s campaign develops. So far he’s been a single-issue candidate, just railing against federal spending and bureaucracy. I’m curious as to how his constitutional interpretational theory (quote what helps you, leave out what doesn’t) fares when tackling other issues, like job creation, infrastructure, and healthcare. He faces an uphill battle trying to claw into a race as the Republican nomination for Congress. If the only message he’s got for people to latch onto is the kind of bunk he’s backed so far, that hill becomes a mountain.


aznew said...

I'm with John Cos on this one -- Bradley Rees has begun to bore me. I thought he was a different kind of citizen-politiican with something interest to say, even if I didn't agree with it. But it turns out he knows only one song, and he plays it over and over and over and over again.

OK, we get it Brad -- you have a very limited view of Federal power under the Constitution. Get over it -- that issue has been settled in our country differently, so unless you can explain how your vision of limited government can work today, you are not relevant. You're like those poor souls I see sometimes on Pennsylvania Avenue and in Laffayette Park, with their political manifestos written on sandwich boards outside their makeshift shelters of next to the Metro grates on which they sleep. The only difference is that your sandwich board is the Internet.

I'm a little dissapointed, actually. I wish he had more to say.

Anonymous Conservative from the 5th said...

Where I do not believe that a person needs to be a lawyer specializing in Constitutional interpretations to be a Congressperson, I do believe that if one is not so trained, they should have such a person as an adviser. If Mr. Rees (or any other) wishes to represent our people, he needs to have a working knowledge of the constitution and what powers that precious document does and does not give to our elected officials.

Mr. Rees has proven himself presently unfit to represent us, and will remain in that status up and until he goes back to school for a Civics refresher.

We spent eight heart breaking years under a President that distorted and ignored the Constitution and nearly brought down our country. We must return to having the Constitution as our guide and foundation to our governance.

Thank you to the writer for underscoring what happens when a Representative begins to spread unconstitutional ideas, like denying citizenship rights to newborn babies born in the confines of the United States.

We have tough issues to solve in order to meet the needs of our people. We do not need Representatives that tear down our government by ignoring or distorting our Constitution.

Bradley Rees, your 15 minutes of fame are over, now let our Representative Tom Perriello alone to meet his Constitutional obligation to us and our beloved country. He is doing a fine job at it!

Katie said...

Bradley Rees' infantile grasp of congressional politics and the needs/desires of the 5th CD are embarassingly well demonstrated on his blog & twitter accounts.

He's an anti-Perriello hatchet-man, and a poor one at that. The fact that he brags about his unlawyerness is a bit like saying "I don't need those book smarts, I've got street smarts!" which is reminiscent of GWB's cowboy presidency. The 5th District has an intelligent, educated, thoughtful and passionate representative. Rees is going to have to bring something more substantive to the table than "I'm not Tom Perriello!"

I hope he goes away soon. Or, conversely, I hope he gets the Republican nomination for congress in 2010, so that Perriello can more easily get re-elected. God knows it wouldn't be a challenge with this clown as opposition.

Katie said...

Also: The voters of the 5th district are intelligent people who, regardless of party affiliation, deserve to have someone more disgnified than Bradley Rees representing them. If I were a Republican, I'd be embarrassed to have him in my party.

Anonymous said...

Calling Thomas Jefferson " Ol’ TeeJ" pretty much says it all doesn't it?

Oh and Katie, IF you were a Republican, you would still be a dumb slit.

Anonymous said...

Tom Perriello is going to loose the next election the only way he got in was by all the out of state money that he said he was not going to take and because of all the black voters voting for Obama most of them will never vote again. How is that CHANGE working out for you trillions of more debt and nothing fixed. GWB will look great when BHO gets done.T.E.A. BY WILL

Michael Ernette said...

I always love to open my mail in the morning by seeing yet another liberal trying to circumvent the Constitution with its own words. The modus operandi is always the same. Step #1 ~ Take two incongruent sentences and splice them together. Step #2 ~ Utilize them as a purpose to expand the powers of the federal government. Step #3 ~ Legitimize it with an obscure reference to something a framer, who is normally discredited as a "dead white guy", wrote in a letter 30 years after the Revolution. Step #4 ~ Accuse Republican of obfuscation.

I agree, Roland, selective constitutional memory is a dangerous thing. But that memory must move beyond Article I of the document. One needs not be a lawyer, though I consider myself a bit of a Constitutional scholar, to figure out that the "necessary and proper" clause of Section 8 refers to those powers enumerated previously. This can be attributed to the phrase "carrying into execution the foregoing powers". Further, the "general welfare" clause, a favorite of the expansion of government, is a preamble to specifically delineated powers given Congress between your 2 juxtaposed clauses. Following the logic presented, any action that takes place between two people within the confines of the border of the United States could be somehow construed as an issue related to the "general welfare" of one of the parties involved and could therefore be regulated by the Federal Government. I don't think even Democrats want that much federal control (see Marxism).

Article I, Section 8 specifically defines what is in the jursidiction of the Congress, or else there would be no need for a list. They could have said "provide for the general welfare" and been done with it. If the welfare clause is the only necessary phrase, then the rest are a list of suggestions, since it could not possibly be all inclusive. Roland, you want to change that, get it amended. Good luck.

The final disparity in the theory presented in this blog is that if the "general welfare" clause could be expanded beyond the instances listed in Article I, then the 10th Amendment is completely nonessential. The powers of the individual and the states respectively are subservient to the power of the federal government. Perhaps you believe this, but that is not ennumerated in the Constitution and was not the intent found anywhere among the writings of the founders.

Concerning Rees' candidacy, I'm certain that he intends to expound on further issues, but it is important to understand the growing scope of the federal leviathan is the most pressing issue of our time (see Rick Wagoner's job and who fired him).

matt said...

the general welfare clause is not the end all be all, as michael very accurately pointed out, and anyone who has ever studied the constitution knows this. micheal has stated plenty of the other technical aspects that i would have, so i'll just add this one:

Thomas Jefferson was not a Framer of the Constitution, nor did he sign it. Why? He did not feel it protected the rights of the people enough (i.e. Bill of Rights). So to use him as an example of someone who felt that the government's powers could be expanded if required is not only hilariously inaccurate, but more importantly, constitutionally irrelevant.

matt said...
This comment has been removed by the author.
matt said...

ps - whoever called Katie that name needs to get the hell out of this blog before i bring a big conservative Texan can of whoop ass on them.

Anonymous said...

I would like to invite the moron who wrote this on my radio show to have a debate about the constitution. I love when liberals prey on peoples stupidity to sound like constitutional scholars. Let's see how you hold up against a real constitutional scholar. Just because you know a little more about the constitution than the unwashed masses doesn't make you an expert. You have no idea what you are talking about. I think you should read the federalist papers. That will give you an idea of what the framers were thinking.
PS Just because you read Federalist #10 in high school doesn't mean you have read the federalist papers. There are more than 80 of them. If you want to come on the radio so I can make you look like the moron you are email since you are a liberal coward I doubt you will. You will probably prefer to have your uneducated readers send me hate mail.

John said...

Ahh the respectful dialogue of the internet.

Drew said...

Wow, I just got home and saw dozens of new comments on this post.

For the new commenters here. Welcome. Stick around and let's dialogue. As you know this is a progressive blog that discusses local and national political issues and theological issues. The premise of this blog, however, is about respectful dialogue. This blog is not premised on people agreeing with each other, nor the creation of a echo chamber. This community has deliberately cultivated people from across the theological and political spectrum: Independents, Democrats, Republicans, Moderates, Conservatives, and Liberals. Every theological and political opinion has been offered on this website, to the betterment of us all.

But this blog does not stand for shrill attacks against each other. The readership of this blog generally does not agree on most political issues, but the readership is respectful enough to dialogue with opposing viewpoints in order to move discussions forward, to find common ground, to relate to our common humanity. While we don't have to agree with each other on this blog, we ask that we be respectful.

To the new commenters. Your viewpoints are very welcome here. Please don't drive-by, however, and call us "dumb slits" and morons. Dialogue at that point breaks down, is non-existent, and we cannot adequately discuss the issues that matter to each other.

Please keep it civil. I, by rule and by nature, do not want to censor thoughts and ideas, but I will if I have to.

Again, welcome to Dem Bones. Please stick around. You will find many friends on this blog, some agreeing with you, others not. But we are good people, genuinely trying to talk to each other.


Michael Ernette said...

First let me be clear. I do not condone name calling or ad hominem attacks personally, and don't use them in my posts or in my own writing.

However, this is a double edged sword. I would like to take a moment to condemn the intellectually lazy people from the right who have commented on the board, but also point out to Roland that the tea party protesters are just that and not "teabaggers". Some conservatives don't live in a bubble and we get the locker room attempt at humor.

I would like to thank Drew for allowing me express my opinion here, and hope that my fellow conservatives would also refrain from vitriole.

Drew said...

Thank you, Michael. I really appreciate that.

To your point, and to be very fair here, I apologize about the presence of the "teabagger" comment here. I'll edit the post accordingly.

James said...

I am quite appalled that someone would stoop to such name calling. Especially on a blog the considers religious matters as well. Such reminds we of the Klan rants of the 1950s and 60s.

We can only assume that Mr. Anonymous is a Rees operative and that his comments and insults are fully approved by Brad Rees. Mark my words sir, when the election of 2010 begins in earnest, you sir will be quoted as a close ally and paid blogger of the Rees campaign. If you wish to understand the full impact of what I am saying, call former Senator Allen and ask him to explain what such name calling gets one in Virginia.

Michael Ernette said...

As a very unpaid blogger, who happens to count Mr. Rees as a close personal friend, I can assure you that Mr. Rees does not condone such speech and does not pay anyone to "blog" for him. If he did, I would be the hired gun.

And as you can see, James, I have condemned them also. I can tell you unequivocally that Brad sent no one here to insult people. Perhaps you should consider a new pastime though if you believe every non-progressive campaign sends people out to verbally harass people. Mr. Rees stands on issues, not on insults. So please holster your verbal weapons and understand that anyone who can type can post a comment to a blog, and not all of them represent the views or endorsment of a candidate.

Drew said...

James, in fairness to Rees, I just got these tweets from him:

@ReesForCongress: @DemBonesDrew I agree wholeheartedly with your latest comment on that post. I have a few friends between Twitter & FB & posted the (cont)

@ReesForCongress: @DemBonesDrew on both sites. Some posts were rather harsh, & I do not condone that. But I think most were respectful AND valid.

aznew said...

There is no one proper balance between the Federal and State governments. In fact, the Constitution provides enough flexibility for people of good will to debate these issues and find the right balance.

Jefferson, for example, was a strong anti-Federalist, that is, until he was President and wanted to exercise greater executive power. Good thing he did, too, since it helped bring us the Louisiana Purchase.

This conflict was, perhaps, most drastically affected by the Civil War, which established once and ofr all that the Federal government was paramount.

So, we can certainly debate the Constitution and parse the specific meaning of this clause and that, but in the end it is just so much naval gazing. For anyone to suggest that they objectively know the meaning or intent of any clause is on its face absurd; the Founding Fathers fought bitterly over the meaning of the document, and they wrote and adopted it.

Rather, the interpretation of the Constiution, as we sit here today, is a result of history, of wars, droughts, depressions, lynchings, etc., not of words on a page.

So, any discussion needs to reference the reality of a melting pot of a country of 300 million people in a world-wide economy. The idea of government should just end my taxes and get out of my way made sense for the country, perhaps, in 1789, but not in 2009.

The failure of Rees and others who think like him to realize this means that they can always be an interesting sideshow for, as I am learning, limited periods of time, but will never be meaningful contributors to the poitical dialogue.

Anonymous said...

I am neither a Brad Rees operative nor a republican nor a "conservative". My apologies if anyone was offended by my moron comment, perhaps I should have said uneducated. I still offer the author of this post a chance to come on my radio show and debate a real constitutional scholar. By the way, calls for civility ring hollow when your side calls ours "teabaggers" ad nauseum. If you would like to come on the show and debate the constitution please email me, my intuition tells me, however, that you have no desire to debate someone who has really studied the constitution. I do really find the idea that a factory worker running for congress would have the money to pay someone to blog for him very funny. I imagine Mr. Rees has no paid staff but, I dont know for sure.

Michael Ernette said...

Sideshow? You make it sound as though people who continue to believe in limits to government intervention on one's personal life and fortune are men with three arms and women who have beards! In seriousness, there is a balance to be maintained between the federal, state, and local governments, and it is very much contained in the United States Constitution. Contrary to the views expressed by Fox, CNN, MSNBC, and Michael Steele, conservatives do not divine the intent of the founding fathers by consulting tea leafs and Miss Cleo.

The assertion that the Constitution is dynamic is patently false. If the debate is to take things into context, let us take it into the context of the history that demanded its writing.

The fledgling country had just relieved itself from the yoke of oppression that was placed upon it by the English crown. For roughly ten years however, the nation floundered under the theory of absolute states' rights via the Articles of Confederation. The Consititutional conventions, the Federalist papers, and the ensuing document that we have were borne of a need to have some unity.

With the fresh taste of tyranny in their mouths, the framers simply had to find balance between the monoarchy they left and the anarchy of the Articles.

Consequently, the Constitution was designed to recognize a federal government, but severely limit its powers. To read the writings of the framers is to understand first and foremost that government begins with the individual, not from a nanny state.

This is the ideological morass that the progressive movement finds itself in, hence the need for a "living" Constitution. The document LIMITS power of the federal government, it does not enable its continued growth. Washington's job is to provide the opportunity for private sector business to create jobs, not build more government jobs. Washington is to create an environment enabling people to overcome poverty, not to give people money. Washinton is to limit what the state can take from the citizen, not demand its own cut of the booty.

The Constitution is a wonderful piece, in that it tells Washington what it cannot do.

James said...

I apologize to Michael Ernette and to any other who I have offended. The "dumb slit" comment and the later "moran" comment were over the top in my opinion, but that did not give me any excuse for my ill behavior.

I also apologize to Mr. Rees for assuming wrongly that Mr. Anonymous was speaking in his stead.

Please forgive my ill temper. What I enjoy about this blog is that people of different opinions, views and politics can come and dialogue. The name calling was new to me.

Drew, I regret that I fell so far from the norm.

Drew said...

It's all good James. This was a growing point for us here. I was guilty of "falling" myself.

Michael Ernette said...

I took no specific offense, James. We're all friends here, I have really been enjoying the conversation, which is why I hate ad hominem attacks from either end of the spectrum. Wish I could shake your hand, Bro.

aznew said...

The problem with the argument that the Constitution has some single, discernable meaning is defied by history.

The fact is that the founding fathers did not all think the same. They argued passionately for their respective visions. Some thought States paramount. Some sought a strong federal government.

In any event, what emerged from that debate is truly a thing of beauty, but like many documents that require consensus, it is also full of compromises and ambiguities. And there were many cans kicked down the road; problems that proved insovable were left for future generations, hopefull under different political circumstances, to resolve. For example, not a single founding father thought the three-fifths comrpomise was a long-term solution.

The great crisis was the Civil War, which established the supremacy of the Federal government nce and for all. no one envisioned such a bloddy and difficult conflict.

But I submit that the document itself was designed to be picked over and its meaning fought over in different political circumstances, not that it has a single, static meaning.

As I said in an earlier comment, look no further than Jefferson, a stout anti-Federalist, who saw things quite differently once he was elected president. He certainly saw the Constiution as a dynamic document, and while he was not a member of the convention (I believe he was in France at the time), he was a huge influence on Monroe and Madison.

Now, dynamic doesn;t mean the document can mean anything. It doesn't mean powers are not limited. It doesn't mean, at time, that judges from both the left and right have gone too far, because they have.

Over time, the system corrects, and finds the right balance for the times.

Drew said...

Michael, I do want to explore something with you. If you don't know, I have a Master's of Divinity degree, but with an emphasis on Christianity and Public Policy. So, while I took several classes studying the Separation of Church and State, I am not a Constitutional scholar. With that said, there are many similar ways in which people approach the Bible and the Constitution, both equally valid.

Conservatives approach both the Bible and the Constitution as a static document. In terms of the Bible, it is God's written word, infallible and undebatable; in terms of the Constitution, the language is self-evident and the intentions transparent. Progressives, on the other hand, generally view documents in socio-historic context, and argue for a dynamic reading of the texts, the spirits of the text, can and must be applied to our contemporary context, as our nation has developed and our plights differ from those historical situations.

I think both of these are equally valid approaches, and both sides view the other side as a flawed approach to interpretation. But, I think the progressive viewpoint, given the disparate viewpoints of the Founding Fathers, is more correct. Given the major disagreements in understandings of the size and the role of the federal government, the Founding Fathers wished for a document that would evolve with the questions an the problems of the day. But, truthfully, we, as readers of these sacred texts and as students of history, bring our epistemological assumptions to the table when we make claims about the interpretation of these documents. I think it is naive, and I do not mean that not in a shrill manner, to think otherwise.

With all of that said, I think Aznew is correct. The argument, rightly or wrongly, over the size of the government is not currently salient to the general electorate. Personally, I always thought that was the best Republican philosophy, a philosophy the party has moved beyond, given Reagan's, Bush 1's, and Bush 2's approach to government. And with much help of Democrats before, between, and after.

The question that is debated currently is where/how should the government be involved. Interestingly, both sides have their issues where they want more government involvement as well as issues with less governmental interference. So both sides, when it comes to matters that concern them, endorse a larger government. Oversimplified, think social issues for conservatives, and economic issues for progressives.

So while I admire views to shrink the size of the government despite my disagreement, in our current context, led by Republican and Democratic Presidents alike, the argument is no longer salient. We have moved beyond that question, rightly or wrongly, and now debate over where the government should be involved.


Bradley S. Rees said...

I had refrained from commenting until this point, in hopes that some civility would be restored. I am pleased to see that it has.
Thank you all for your comments, with the exception of whoever 'Anonymous' may be.
I absolutely repudiate the use of such derogatory language. No matter how heated a debate may become, that type of coarse language is completely uncalled for. To be fair, the toilet/locker room humor originated in the initial post, written by a guest of Mr. Lumpkin, but the fact remains that it does far more to detract from the dialogue than it does to add weight to either side's point of view.
As to the topic of discussion, the points raised by the guest writer will be addressed, in detail, on my blog as soon as time permits. Aside from being a factory worker, father, and husband, I am engaged in some personal matters at the moment that are fairly time-consuming.
Thank you, Michael and Phil for your posts, and Matt, as well (whoever you may be, please consider becoming a member of my work-in-progress site at
Special thanks to Drew for contacting me via Twitter and working with me to ensure that cooler heads prevailed here.
I have kids to tuck in now, so I'll say good night for now. I hope we can continue to engage in more civil discussion here, and elsewhere (especially in person, should we meet), in the days and months leading up to the 5th District Republican nominating process.
Thank you,

Michael Ernette said...

Wow! To fit this all in one post! Drew, to give you my background, I am a freelance writer without a degree. I consider myself a Constitutional scholar only because I've studied the document and many of the opinions that followed, as well as the Federalist Papers and many speeches and letters of the framers, privately. I am also a practicing Catholic Chirstian who moved to the Roman church after much study on that front. So, I speak from private experience and want you to understand in case through my ramblings, you think to yourself, "What idiot program gave this guy a degree." My final disclaimer, since I am friends with Brad, understand the things I am about to say are completely of my own volition and are in no way attributable to Mr. Rees or his campaign.

That said, you will find it interesting that I do not hold the Constitution and the Bible in the same light. I consider the Bible to be the divinely inspired word of God upon which Christians are to hold themselves accountable. The stoic "jot and tittle" crowd that refer to themselves as fundamentalists lose the beauty of the text, in my opinion by that stubborn adherence to the exact wording. In essence they miss the forest for the trees. Living in Lynchburg, it becomes easy to see that by grasping at the minutia of the proper Greek verb declentions in the Septuigent (I've actually had a Liberty student obfuscate an argument that way), they miss the pureness of the moral lessons we garner by simply reading the stories and taking with us a better way to interact with each other on Earth and with our Father in Heaven. It is this dynamic view that Christ himself was able to take the law of the Talmhud, boil it down to "love the Lord your God with all your heart, mind, and strength," "love your neighbor as yourself, " and build from that a new teaching that asked more of his followers than the Jews of the Old Testament ever knew. So, as you can see, while I hold that Christ is the center of the salvation of the eternal soul, the Bible is not meant to be a legally binding document, and certainly, certainly not a science book.

As to the Constitution, there are things we agree on. I know from my own reading that the foundersdisagreed widely on the strength of the Central houses of power. I do not pretend to understand why some would give their lives and sacred honor to dispatch a tyrant king only to centralize that power in the hands of another group of tyrants, but that is why I am still a student of history. Be that as it may, I also agree that interpretation of the law must take place given the social factors involved. Obviously, Madison knew nothing of internet predators crossing state lines to commit crimes against the innocent, for instance. But there is a strong difference, and to a large degree I have disparities with strict social conservatives, between interpreting the rule of law given by the Constitution and "reading into it" for my own personal agenda.

To wit, from a social standpoint, I abhor abortion. Before the posts start, I use this example for several reasons, so let's not follow the "life of the mother" rabbit hole. It is my belief that life begins at conception and that that life should be protected. That said, the reason I support overturning Roe v. Wade is not to make abortion illegal in the United States, but because I disagree with the ruling from a "rule of law" standpoint. If the fourth amendment extends to the right of the mother to terminate pregnancy, then the fourth amendment extends AT LEAST to the right of the child once the fetus because viable. Therefore, the act of abortion at least on a viable fetus creates a Constitutional crisis. In much the same way, I oppose gay marriage, not because I want to impose my religious beliefs on others, but because the state should not be in the marriage business in the first place.

more to follow

Michael Ernette said...

Okay, to finish my abortion example, ultimate I have come to believe in the one thread that held the writings of ALL the framers together ~ individual responsibility. The law only pertains to those who are affected by it, on that progressives and conservatives agree. But, in my opinion, the progressive movement allows the individual to abrogate his responibility by relying on the premisiveness or help from the state, be the state's involvement passive or active. In the case of abortion as birth control, the simple individual response should be, if you not want to get pregnant or have a "baby mama", don't have sex. Yes, that's not true in all cases, but the vast majority fall in that category. This is the active solicitation of the state.

Active solicitation of the state is the welfare system. While the state has a responsibility to aid citizenry in poverty, in many ways to prevent armed revolt, the system has been neglected and abused. Further, I believe that the state has had to step in because the church has shirked its duties and mandate to take care of the poor.

Everything I've said so far is ideological. But if you and aznew are correct in any way, then it stands to reason that your final point can only be true if we continue to see ourselves as powerless. By that I mean, we cannot have reached the tipping point of debate over the size of federal government if your estimation of the Constitution as a guiding document is meant to be seen in socio-historic context. By that very definition, we should continue to debate the size and scope of government.

The unfortunate part of this is that it will take a lot of hard work, by progressives and conservatives, as it did in the late 19th century, to shrink it. For all of his faults, William Jefferson Clinton took steps to move in that direction, as did Reagan in many respects. But I submit that the problem of increased government can only be solved by demanding more from our representatives than maybe the local earmark for the Charlottesville bypass or Lynchburg-DC train service. The joy of Mark Warner's governorship locally was that he was willing to make cuts in service to right the ship. This must occur on a federal level, or balance will not be achieved.

There I'm done, sorry it took so long.


Drew said...

Michael, thank you for your thoughtful response. I really liked it, despite our differences.

I don't want to weigh in on the abortion argument, good people have strong disagreements over it. But, I do want to touch on other points of yours.

I actually do find it very interesting that you do not approach the interpretations of the Bible and the Constitution the same. That's fascinating to me, as Christians and Americans, respectively, view these documents as authoritative, to whatever extent, in our lives. To view a document that guides our moral and relational behavior differently than the document that guides our political and, to a lesser extent, our social behavior fascinates me. Can you explain that dissonance further? Nobody has to approach the texts the same, but it has been my experience that people generally do.

I do have a major point of ideological pushback, however. You state that progressives abdicate personal responsibility to the state, and therefore, we are fundamentally powerless. We are, the logic goes (and I don't mean to provide a caricature here), small dots easily mowed down by an all-powerful government. Actually, to my knowledge, we don't think that at all. But I don't have a monopoly on the progressive voice.

Look at the 2000, and more recently, Rep. Perriello's election. Those elections taught us, in a very close to home manner - literally outside my doorstep - that people do have a say in the direction of their government. As a community and political organizer, each at various times, I understand people-powered politics, how a small group of people can create a movement. We are not powerless. Abdicating personal responsibilities to our leaders is a dangerous, dangerous thing. I think you and I can both agree on that.

So, then, if I believe that we aren't abdicating responsibility, and that we have power over the political arena, it stands to reason, then, that we, collectively, have the government that we currently want, legislating the priorities that currently matter to us. If this government or these priorities upset you, or the electorate at-large, then vote (I'm not lecturing you personally). Again, since we have the power, via the election booth, if enough people agree with you and Rees, then we, again collectively, will have elected a government with that voice. We have the power, and importantly that power doesn't reside in our grasp every two to four years. That is why garnering and mobilizing support for issues that matter to us, to lean on our elected officials, is an important part of our democratic process ... take the email that Rees cited as a great example.

And to your final point, I think we have reached that tipping point in the debate of the size of the federal government, it happened somewhere during the early to mid 90's. As we have stated, and you appear to disagree, we have moved past that argument, into questioning the location of the intervention of the federal government. You don't have to like it, but that is where we are.

And to Aznew's point, which I think you agree, we are still finding the proper balance of all of this. Discussions, like this one, only provide clarity and clear up obfuscation. Thanks!

I am not sure - its very late - that I hit all of your major points. If I didn't, tell me.

Michael Ernette said...

Quick note, Drew. I will absolutely be continuing our dialogue in the morning. You have a good night, my friend.

aznew said...

I will weigh in on the abortion point, because to me it encapsulates this debate.

I am strongly pro-choice, because the pro-life position is, when all is said and done, a expression of a religious preference. Not on an individual basis -- I'm sure there are athiests who would not choose to have an abortion -- but as a matter of imposing one's beliefs about the nature of and beginning of life on others.

I believe in a pluralistic society, purely religious beliefs should not determine rules for all. It doesn't make them unconstiutional, rather, merely bad policy.

Now, before anyone argues that our laws come from the Ten Commandments and we are a Judeo-Christian society and blah blah blah, I am aware of that. But those are different. Laws against murder and theft and, perhaps, even adultery and perjury, may have orgins or important points of development in the Book of Exodus, but they have already been adopted by secular society as necessary and desireable rules for all.

The anti-Choice position, on the other hand, seems to boil down to the belief that life begins at conception, a proposition for which there is no objective proof one way or another (and I say this as a religious person, although one for whom the Word of G-d as expressed in Scripture, but as necessarily communicated by man (or woman), is not proof of anything.

With that out of the way, you might also be surprised to learn that I think Roe v. Wade is a lousy piece of Constitutional law. In fact, the whole "penumbra" concept of the Right to Privacy is a theory (developed mainly by Justice William Douglas, one of the greatest minds EVER) that has the unique qualities of being both unbelievably brilliant and absurdly ridiculous at the same time. You can just make up because they ought to be there.

I'm all in favor of the policy it has created, but there is little doubt in my mind that it has done greater harm to the Constiution and, not incidentally, to the progressive movement in the United States.

Compare that to another famous case, however, Cohen v. California. The question there was whether the state could arrest a guy for wearing a jacket that said "Fuck the Draft" (he, it was the 60s!). I think the vote was 8-1 that it could not, that the message on the jacket wa sa form of free speech under the First Amendment.

Seems simple enough, except for that one dissent. It came from Hugo Black, another amazing legal mind (BTW, Jurists like Douglas and Black make me sad for the quality of legal scholarship on the Court today. Instead, we get a ideologue like Scalia as the Court's intellectual force). Black's argument was that the First Amendment concerns freedom of "speech," i.e., spoken words, and therefore did not protect something written on a piece of clothing.

This was too much for my Con Law professor who, even though something of a literalist himself and a former clerk for Black, used the word "senility" during our discussion of this dissent.

But, there you have it -- a static Constitution at work.

Michael Ernette said...

aznew, how did I know we'd be chasing the rabbit when I brought up the A-word? This was specifically what I intended to avoid by broaching the subject. From both perspectives, the abortion debate has been mauled by religious invectives, incensing both sides. The progressive mouthpieces are just as Sacramental on the "woman's right to choose" as the "Moral Majority" is on the right about life beginning at conception.

The point upon which we both agree is that Roe v. Wade is bad law. I make no allusions, I am pro life, and if Wade is overturned, I will work in Virginia to see that abortion on demand is eradicated, or at least heavily restricted. Again, these are my personal views and not those of Mr. Rees. The point I was making is that Roe v. Wade is an example of taking a "dynamic" view of the Constitution to make bad case law.

Since we agree that the "penumbra" theory of the fourteenth amendment with the equal protection of the ninth is a reach, no other Constitutional authority even closely merits federal juridiction of the issue. If that logic follows, the case falls squarely under the tenth amendment, being the only clause in the Constitution that is relevant. Hence, the entire debate becomes a state issue, outside the jurisdiction of the federal branch, and Roe v. Wade doesn't exist.

See, aznew, this is an issue that we can both agree on. My religious/sociological values on the merits of the legality of the subject have no bearing on the issue itself, and this is as it should be. As I have said before, regardless of public policy, I stand squarely on the rule of law, unprejudiced by the enforcement of the issue in question. It would be better to uphold the tenets of the document, than to erode the freedoms that it ensures for the sake of winning an argument on one issue. Send it to the states, I say! And I am not going to entertain any more on my personal views on abortion, because I merely addressed to use the issue anecdotally.

The only dig I'm going to throw back at you is referring to Scalia as an ideologue. While I agree that Justice Scalia certainly has an agenda, those who live in glass house should not throw stones. Justice Kennedy used international law to justify a death penalty ruling in Ropper v. Simmons, and no one can seriously suggest that Stevens isn't an ideologue either. And therein lies the rub, which predicates my argument about size and scope of government. The nature of ideologues, whether conservative or progressive, is to enforce their will on the whole of the people. This is not a new concept, the weapons of enforcement have just gotten bigger. This is why I am suggesting that government is best run beginning at the local levels. I still don't believe we are past that argument, and when I get some time this afternoon, I will expound further as to why.

Kent H said...

Plugging in here at the end seems a little anti-climactic. But I have to address what I see has a rather false (and frightening) opinion of Constitutional law by Aznew.
It seems to me that to say we can't know the intent or standard of law from the words "on a page" or to suggest that Constitutional law is somehow shackled by the opinions and mores of 300 million citizens is to say (of course) that we have no objective standard and there can be no rule of law at all.
Of course the founders had a multitude of different opinions on every subject. That is why there were debates and discussions ("Summer of 1789" by David Stewart is a good resource). That is why they fought diligently for their opinions and soundest fashioning of policy. But in the end, all that rises to the level of enforceable law was WHAT WAS WRITTEN DOWN and approved by the states.
A dynamic document can (and often has) meant whatever the hacker-of-the-day wanted it to mean. Rather, we have a system of law based on the specific wording of the Constitution. If we, as a nation, find that document to be unfunctionable (word ?) in 2009, then we revise it. We don't reinterpret it to fit our latest fancies.
The wording of both Constitution and Scripture (to graze another discussion here) is to be taken literally and to its natural, definitional meaning. As a conservative (and more importantly American patriot), I find it troubling how so many claiming to love and respect both documents can arrive at interpretations that reflect the opposite of the plain reading of the text. But hey, if you want a different country (or faith) than the one originally founded, just change the rules as you go.
Best discussion in weeks, folks. Kudos


Kent H said...

P.S. For a good discussion of this debate, read "Originalism: A Quarter-Century of Debate" - Edited by Steven G. Calabresi.
(I like books).

aznew said...

Michael - We do agree on Roe v. Wade. And the only reason I went down the Abortion rabbit-hole was to demonstrate my reaosning from the other side of the issue, not to engage you on the issue of abortion, one of my least favorite topics of political discussion.

Kent - I think you misinterpret what I say. My point is that the dictates of the Constitution simply do not have a single, objective meaning (or at least many don't). This doesn't mean they are subject to the democratic whims of 300 million people -- we do have Justices, after all, insulated from the political process.

All it means is that neither side in the ongoing dispute over the relative balance of power between the Federal government and the states can lay claim to being "right." What there is is endless debate, and IMHO, to be meaningful that debate has to consider the context of the circmstances in which it occurs, rather than suggesting that we follow some falsly defined view of what the "Founding Fathers" thought.

Kent H said...

"My point is that the dictates of the Constitution simply do not have a single, objective meaning (or at least many don't)."

Aznew, If you mean what this says, I am fearful of where we are heading and I think I'm getting your message clearly enough. Case law shows this model exactly and proves the point I'm making. The words (and definitions of those words) of the Constitution are not merely being expanded and made more clear, but are being "reinterpreted" into a different meaning and therefore a different country is emerging than the one founded in 1787.

The problem may be one of definitions. The fact is, the wording of the Constitution does have one meaning -- many interpretations. If I say, "You must ride a horse." It's pretty clear what that says. Now the smartest of our lawyers or judges may make that say, "Oh, ride the most common mode of transport available." (I know this is silly). The point is, the sentence has one meaning. Now that the US has adopted (in large part) the idea of a "dynamic document," the lawyers and judges can change law by parsing, redefining, and "cut and paste" judicial action on the right and left. The words of the constitution can be made more and more complicated (and therefore less relevant) until even most law students don't even read the constitution - only precedent and case law. But this great country was founded on the solid wording of the law of the land. And an originalist (constructionist) foundation is the only one that can consistently ensure that America remains a nation of laws instead of a nation of precedent and judicial opinions being passed off as law. At least that's my take.

thanks for the time,

Drew said...

Hey guys, this thread has become pretty full. I, however, don't want to end or stiffle the current discussion. With new voices and a re-invigorated regular commentatorship, I am very happy with this current dialogue an discussion.

Click here to the new Open Thread to keep this conversation rolling.